Patently absurd

The $70 bln drugmaker’s fishy deal with Native Americans may impede a U.S. tribunal from cracking down on such rights. Weak rules in the forum also face review in the new Supreme Court term. With luck, the pushback will lead to better remedies for flawed intellectual property.

Context News

A Native American tribe holding patents for drugmaker Allergan moved on Sept. 22 to dismiss a case brought by generic-drug company Mylan challenging the patents.

In a filing with the U.S. Patent Trial and Appeal Board, the Saint Regis Mohawk Tribe asked that Mylan’s case seeking to invalidate Allergan’s patents on dry-eye medicine Restasis be thrown out on the grounds that the board has no jurisdiction over the tribe.

Mylan in late 2016 asked the patent board to invalidate Allergan’s Restasis patents so it could launch its own generic version of the medicine, which generated $1.5 billion in revenue for Allergan last year.

A lawyer for Mylan said at a Sept. 11 court hearing that the company would vigorously oppose Allergan’s efforts, calling the deal with the tribe, unveiled on Sept. 8, a “sham transaction.” In its court filing, the tribe said it is a sovereign government that cannot face litigation in an administrative court unless it waives the immunity or Congress eliminates it. “Neither of these exceptions apply here,” the tribe said.